LaCrescent Constant Care Nursing Center, Inc.

LACRESCENT CONSTANT CARE NURSING INC. LaCrescent Constant Care Nursing Center , Inc. and Minnesota Council # 65, American Federation of State, County and Municipal Employees,AFL-CIO. Case 18-RC-9536 January 4, 1974 DECISION AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS FANNING, JENKINS, AND KENNEDY Pursuant to a Stipulation for Certification Upon Consent Election, a secret ballot election was conducted among the employees in the stipulated unit described below. The tally of ballots furnished the parties showed that of approximately 44 eligible voters, 38 cast valid ballots, of which 26 were for, and 12 against, the Petitioner. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. On July 25, 1973, the Acting Regional Director issued and served on the parties his Report on Objections, recommending that the objections be overruled in their entirety and Petitioner be certified as the exclusive collective-bargaining representative in the stipulated unit. Thereafter, the Employer filed timely exceptions to the Acting Regional Director's, report, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The parties stipulated and we find that the following employees constitute an appropriate unit I The Employer's exceptions raise no material issues of fact or law which would warrant the holding of a hearing or reversing the findings, conclusions, and recommendations of the Acting Regional Director As pointed out by the Acting Regional Director, the employees were fully aware of the Employer's efforts to secure additional income and that the Employer's income was, to a large extent, derived from the State. Moreover, the Union was not in a special position to know more than the employees about the lawsuit whereby the Employer had sought more funds from the State. In addition, it is clear that the Employer could and did keep the employees fully posted on its efforts to obtain more funds to operate the nursing home. In this regard, we particularly note that on May 27, more 115 for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time nurses aides, housekeeping employees, laundry employees, dietary employees, social activities aide, orderlies, and maintenance employees; excluding casual employees, temporary employees, confidential employees, LPN's, RN's, guards, and supervisors as defined in the National Labor Relations Act, as amended. 5. The Board has considered the Acting Regional Director's report and the Employer's exceptions and brief, and hereby adopts the Acting Regional Director's findings, conclusions, and recommenda- tions.' As the Petitioner has received a majority of the valid ballots cast, we shall certify it as the exclusive bargaining representative of the employees in the unit found appropriate. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Minnesota Council #65, American Federation of State, County and Munici- pal Employees, AFL-CIO, and that, pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. MEMBER KENNEDY, dissenting: Contrary to my colleagues, I would find a substantial misrepresentation of the Employer's financial condition by the Petitioner, and therefore set aside the election. The Petitioner's representative was found by the Acting Regional Director to have made false statements that the Employer's financial condition would enable it to increase wages. My colleagues have concluded, by affirming the Acting Regional Director's recommendations, that these misrepresen- tations were not of such a substantial nature as to warrant vacating the election. I cannot agree with this conclusion. Prior to a stipulated election conducted on June 5, than a week before the election and 4 days after the union meeting at which the alleged misrepresentation occurred, the Employer did communicate with its employees and gave them a check for additional wages. Finally, we do not believe that "nurses aides , housekeeping employees, and laundry employees" are so bereft of common judgment as to be unable to evaluate statements to the effect that by subtracting out-of-state purchases from gross sales shows that sufficient money was left over to pay a minimal wage increase In our view, the employees were well able to determine that the Employer's expenses of operation included more than out-of-state purchas- es, and they required little "expertise" to realize that at least their own paychecks were also a cost of that operation. 208 NLRB No. 9 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1973, and won by the Petitioner, 26-12, a staff representative of the Petitioner met with the employ- ees. He told the assembled employees that the Employer was making "too much profit," and for that reason lost a welfare funds law suit in a state court. He stated that it would have won the law suit if it had shown a "negative cash flow." The representative then read from a Board form in which the Employer stipulated that it had annual gross sales of $323,902, and purchases from points directly outside the State of Minnesota in excess of $50,000. Upon completion of the reading, he remarked that after subtracting $50,000 of interstate purchases from gross sales of $323,902, the Employer had over $200,000 to meet additional expenses, and "must surely have some money left over to pay at least a minimal wage increase." In actuality, as the Acting Regional Director found, the Employer suffered a loss. The Acting Regional Director's investigation re- vealed that the Employer continually communicated to its employees by letter and memoranda that it was attempting to secure additional funds from the Minnesota Department of Public Welfare. He found this created a "clear implication" that the Employer, faced with rising costs, had no funds available for wage increases. He concluded, from this implication, that the employees were in a position to independ- ently evaluate the Petitioner's misrepresentation. Such reasoning is unacceptable to me. The Board has not adopted, and in my estimation should not adopt, a penumbra-like approach to solving preelection 2 See The Halsey W Taylor Company, 147 NLRB 16. 3 N L R B v. Trancoa Chemical Corp., 303 F 2d 456 (C A 1, 1962) 4 Schneider Mills, Inc, and Jimmy and Josh, Inc v N L R B, 390 F 2d 375 (C A 4, 1968) S Gallenkamp Stores Co, Mercury Distributing Company, Acme Quality Paints, and F & G Merchandising v N LR B, 402 F 2d 525 (C A 9, 1968) 6 N L R B v G K Turner Associates, 457 F.2d 484, 488 (C A 9, 1972) misrepresentation questions. It is farfetched to suggest that "nurses aides, housekeeping employees, and laundry employees" would possess the expertise to independently evaluate the Petitioner's misstate- ments.2 To conclude that employees would view the statements of the Petitioner's representative as mere innocuous puff is unlikely at best. The misrepresentation of the Employer's financial condition, whether or not deliberate, involved an important matter to the voters.3 The Employer did not have an opportunity to make an effective reply to this misrepresentation.4 And, of course, any misre- presentation concerning wages cannot be considered trivial.5 In a similar case, G. K. Turner Associates, 183 NLRB 658, a union agent stated erroneously to the employees that the employer had earned $500,000 the previous year. The Board found that the financial condition of the employer was not a major issue in the election, and that the employer's president had an opportunity to set the record straight, and accordingly dismissed the union's misstatement. However, the Board's finding was rejected, correctly in my view, by the Ninth Circuit, which stated: Misrepresentation about company profitability can be material, since the extent to which employees share equitability in the products of their labor may be of great interest to them.6 Because of these circumstances, I believe that under the test enunciated in Hollywood Ceramics,7 the election should be set aside and a new election directed. 7 In Hollywood Ceramics Company, Inc, 140 NLRB 221, 224, the Board stated "We believe that an election should be set aside only where there has been a misrepresentation or other similar campaign trickery, which involves a substantial departure from the truth , at a time which prevents the other party or parties from making an effective reply, so that the misrepresenta- tion, whether deliberate or not, may reasonably be expected to have a significant impact on the election "